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Chapter 11 – Intellectual Property

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Chapter 11 – Intellectual Property CHAPTER 11 INTELLECTUAL PROPERTY SECTION A GENERAL PROVISIONS AND BASIC PRINCIPLES Article 11.1: Objectives 1. The objective of this Chapter is to reduce distortion and impediments to trade and investment by promoting deeper economic integration and cooperation through the effective and adequate creation, utilisation, protection, and enforcement of intellectual property rights, while recognising: (a) the Parties’ different levels of economic development and capacity, and differences in national legal systems; (b) the need to promote innovation and creativity; (c) the need to maintain an appropriate balance between the rights of intellectual property right holders and the legitimate interests of users and the public interest; (d) the importance of facilitating the diffusion of information, knowledge, content, culture, and the arts; and (e) that establishing and maintaining a transparent intellectual property system and promoting and maintaining adequate and effective protection and enforcement of intellectual property rights provide confidence to right holders and users. 2. The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. 11-1 Article 11.2: Scope of Intellectual Property For the purposes of this Chapter, “intellectual property” means copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs (topographies) of integrated circuits, protection of plant varieties, and protection of undisclosed information, as referred to in Sections 1 through 7 of Part II of the TRIPS Agreement. Article 11.3: Relation to Other Agreements1 In relation to intellectual property, in the event of any inconsistency between a provision of this Chapter and a provision of the TRIPS Agreement, the latter shall prevail to the extent of such inconsistency. Article 11.4: Principles 1. A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that such measures are consistent with this Chapter. 2. Appropriate measures, provided that they are consistent with this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.2 3. Further to paragraph 2, the Parties recognise the need to foster competition. Article 11.5: Obligations Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, implement in its law more extensive 1 For the purposes of the application of this Article, the Parties agree that the fact that this Chapter provides for more extensive protection of intellectual property than is required by the TRIPS Agreement does not mean there is an inconsistency within the meaning of this Article and paragraph 2 of Article 20.2 (Relation to Other Agreements). 2 The Parties recognise that intellectual property rights by themselves do not necessarily confer market dominance. 11-2 protection than is required by this Chapter, provided that such protection does not contravene this Chapter. Each Party shall be free to determine the appropriate method of implementing this Chapter within its own legal system and practice. Article 11.6: Exhaustion of Intellectual Property Rights Each Party shall be free to establish its own regime for exhaustion of intellectual property rights. Article 11.7: National Treatment 1. Each Party shall accord to the nationals3 of other Parties treatment no less favourable than that it accords to its own nationals with regard to the protection4 of intellectual property, subject to the exceptions provided in the TRIPS Agreement and in the multilateral agreements administered by the World Intellectual Property Organization (hereinafter referred to as “WIPO” in this Chapter), to which that Party is party. 2. A Party may avail itself of the exceptions referred to in paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of another Party to designate an address for service of process in its territory, or to appoint an agent in its territory, only where such exceptions are: 3 For the purposes of this paragraph, a “national” of a Party shall include, in respect of the relevant right, any person as defined in subparagraph (t) of Article 1.2 (General Definitions) of that Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Article 11.9 (Multilateral Agreements) and the TRIPS Agreement. 4 For the purposes of this paragraph, “protection” includes matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter. Further, for the purposes of this paragraph, “protection” also includes the provisions concerning: (a) effective technological measures set out in Article 11.14 (Circumvention of Effective Technological Measures); and (b) rights management information set out in Article 11.15 (Protection for Electronic Rights Management Information). 11-3 (a) necessary to secure compliance with its laws and regulations that are not inconsistent with this Chapter; and (b) not applied in a manner that would constitute a disguised restriction on trade. 3. The obligations under paragraph 1 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights. Article 11.8: The TRIPS Agreement and Public Health 1. The Parties reaffirm the Doha Declaration on the TRIPS Agreement and Public Health adopted on 14 November 2001. In particular, the Parties have reached the following understandings regarding this Chapter: (a) the Parties affirm the right to fully use the flexibilities as duly recognised in the Doha Declaration on the TRIPS Agreement and Public Health; (b) the Parties agree that this Chapter does not and should not prevent a Party from taking measures to protect public health; and (c) the Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party’s right to protect public health and, in particular, to promote access to medicines for all. 2. In recognition of the Parties’ commitment to access to medicines and public health, this Chapter does not and should not prevent the effective utilisation of Article 31bis of the TRIPS Agreement, and the Annex and Appendix to the Annex to the TRIPS Agreement. 3. The Parties recognise the importance of contributing to the international efforts to implement Article 31bis of the TRIPS Agreement, and the Annex and Appendix to the Annex to the TRIPS Agreement. 11-4 Article 11.9: Multilateral Agreements 1. Each Party shall ratify or accede to the following multilateral agreements to which it is not yet party: (a) the Paris Convention for the Protection of Industrial Property done at Paris on 20 March 1883, as revised at Stockholm on 14 July 1967 and amended on 28 September 1979 (hereinafter referred to as the “Paris Convention” in this Chapter); (b) the Berne Convention for the Protection of Literary and Artistic Works done at Berne on 9 September 1886, as revised at Paris on 24 July 1971 and amended on 28 September 1979 (hereinafter referred to as the “Berne Convention” in this Chapter); (c) the Patent Cooperation Treaty done at Washington on 19 June 1970, as amended on 28 September 1979 and modified on 3 February 1984 and 3 October 2001 (hereinafter referred to as the “PCT” in this Chapter); (d) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks adopted at Madrid on 27 June 1989, as amended on 3 October 2006 and 12 November 2007 (hereinafter referred to as the “Madrid Protocol” in this Chapter); (e) the WIPO Copyright Treaty adopted in Geneva on 20 December 1996 (hereinafter referred to as the “WCT” in this Chapter); (f) the WIPO Performances and Phonograms Treaty adopted in Geneva on 20 December 1996 (hereinafter referred to as the “WPPT” in this Chapter); and (g) the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled adopted in Marrakesh on 27 June 2013 (hereinafter referred to as the “Marrakesh Treaty” in this Chapter). 2. Each Party shall endeavour to ratify or accede to the following multilateral agreement to which it is not yet party: the Budapest Treaty on the International Recognition of the Deposit of Micro- 11-5 organisms for the Purposes of Patent Procedure done at Budapest on 28 April 1977, as amended on 26 September 1980. 3. If any Party intends to ratify or accede to any of the following multilateral agreements, it may seek to cooperate with other Parties to support its ratification or accession to and its implementation of that multilateral agreement: (a) the 1991 Act of International Convention for the Protection of New Varieties of Plants as revised at Geneva on 19 March 1991; (b) the Geneva Act of the Hague Agreement
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